878 F.2d 1031 (7th Cir. 1989), 88-1877, Barkauskas v. Lane

Docket Nº88-1877.
Citation878 F.2d 1031
Party NameEdward BARKAUSKAS, Petitioner-Appellant, v. Michael P. LANE, Director, Illinois Department of Corrections, and James Fairman, Warden, Joliet Correctional Center, Respondents-Appellees.
Case DateJuly 11, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1031

878 F.2d 1031 (7th Cir. 1989)

Edward BARKAUSKAS, Petitioner-Appellant,

v.

Michael P. LANE, Director, Illinois Department of

Corrections, and James Fairman, Warden, Joliet

Correctional Center, Respondents-Appellees.

No. 88-1877.

United States Court of Appeals, Seventh Circuit

July 11, 1989

Argued Feb. 28, 1989.

Rehearing Denied Sept. 11, 1989.

Richard F. Faust, Chicago, Ill., for petitioner-appellant.

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Sally L. Dilgart, Chicago, Ill., for respondents-appellees.

Before POSNER, RIPPLE and MANION, Circuit Judges.

POSNER, Circuit Judge.

An Illinois jury convicted Edward Barkauskas of murdering his wife, and the judge sentenced him to prison for the rest of his life. After exhausting his state remedies, see People v. Barkauskas, 147 Ill.App.3d 360, 100 Ill.Dec. 821, 497 N.E.2d 1183 (1986), cert. denied by Ill.Sup.Ct., Barkauskas sought federal habeas corpus, which was denied. The question presented by his appeal is whether the prosecutor at Barkauskas's criminal trial withheld material evidence favorable to the defense.

The main witness against Barkauskas was James Galason, an eighteen-year-old former mental patient. A participant in the murder, he testified as follows in exchange for receiving a sentence of twenty years for his part in the crime. Barkauskas had asked Galason to murder Barkauskas's wife, Joanne; and Galason had agreed to do so in exchange for a promise of the balance of a life insurance policy on Joanne, minus funeral expenses. Several days after the deal was struck, as Galason and his roommates, Kenneth and Joseph Beringer, were walking down the street, Kenneth pulled out a photograph of Joanne and said, "We'll see who gets her first." Later Barkauskas visited Galason and urged him to act soon, as Joanne was about to visit a lawyer about getting a divorce. Barkauskas requested Galason to shoot Joanne below the neck so that she could have an open-casket funeral. Thus does life imitate art; for Othello had told the sleeping Desdemona, "Be thus when thou art dead, and I will kill thee, / And love thee after."

On the eve of the murder Barkauskas gave Galason a ride home and told him to kill Joanne the next day as she walked to the bus stop. Early the next morning the Beringers wakened Galason to tell him they had stolen a getaway car. Joseph Beringer agreed to do the actual shooting and armed himself with a sawed-off shotgun. Barkauskas drove Galason and Joseph Beringer (Kenneth decided to stay home) to the place where the getaway car was parked, and then continued on to Skokie to create an alibi.

Galason and Joseph Beringer drove to an alley near the bus stop. Joseph left the car and hid near a garage. As Joanne walked past he shot her twice, then returned to the car and drove off with Galason. They abandoned the car near some railroad tracks and hid the gun in nearby weeds. (All this, we emphasize, is according to Galason.) But it was too late; the car had been noticed at the scene of the crime and followed by the police, who arrested Galason and Joseph Beringer as they were fleeing from the getaway car and recovered Joanne's photograph from their residence.

Barkauskas, testifying in his defense, admitted knowing Galason and giving him a ride home the night before the shooting but denied having hired him to murder Joanne. He also testified that he did not know how the Beringers had gotten a photograph of her, a photograph he claimed never to have seen. After the murder he had told the police that his wife had probably been killed for her jewelry, but no jewelry had been removed from her body and her purse was found with more than $50 in it.

The Beringers were tried shortly after Barkauskas was convicted, and were also convicted. Joseph was sentenced to natural life in prison and Kenneth to thirty years. At their trial the defense called an eyewitness to the murder, Harvey Webb, who had not testified at Barkauskas's trial. Webb testified that James Galason, not Joseph Beringer, had fired the shotgun at Joanne. He said he knew this because Galason had long blond hair which the recoil from the shotgun blast had caused to wave in the air; Joseph Beringer has short brown hair. Webb also testified that it was on February 21--almost three weeks after Barkauskas's conviction--that he had told the prosecutor in the Beringers' case (the same prosecutor who had prosecuted Barkauskas) that Galason was the triggerman.

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After learning of Webb's testimony at the Beringers' trial, Barkauskas moved for a new trial. The judge denied the motion after a hearing in which the prosecutor testified that until February 21...

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